Excerpt:.....as stated by the eye-witnesses of the prosecution. on the other hand, the explanation given by the accused persons and the evidence led by them in defence, gives a plausible explanation of their stand that the incident took place on account of the reason that the complainant party had damaged the water-channel going in the field of the accused-persons. if that be so, the complainant-party was an aggressor, and in that case, if the injuries were inflicted on both the parties, the case of exercise of right or private defence of property and person, is clearly made out by the accused-persons. looking to the nature of injuries found on the body of the het ram, which were only five in number and out of which only one proved to be fatal and which was caused by lathi, which is a weapon usually..........lacerated wound 7 cm. x 0.5 cm. x depth upto bone on upper surface of head in front of the tuft. simple blunt2. oblique lacerated wound 6 cm 0.5 cm x depth upto bone on back of the head near tuft. simple blunt3. red contusion with the wetting 5 cm x 4 cm on right mastoid region. simple blunt4. carved lacerated wound 2.5 cm x 0.95 cm x skin deep on right thumb in front of nail margin-simple blunt5. abrasion 2 cm x 1 cm on outer side of left hand margin-simple blunt6. double line red vertical contusion 15 x 1.5 cm on back of right side of chest-simple bluntmalli ram1. transverse lacerated wound 4.5 cm x 1 cm x depth upto bone on left side of the head upper surface in frout-simple blunt2. vertical lacerated wound 4 cm x 1 cm x depth upto bone on back of the head left side-simple blunt3......

Judgment:

N.M. Kasliwal, J.

1. This appeal by accused Ram Khiladi and Malli Ram, is directed against the judgment of the learned Additional Sessions Judge, Gangapur City dated February 29, 1980 by which they have been convicted and sentenced in the following manner:

Accused Ram Khilari

2. under Section 302 read with Section 34, IPC to imprisonment for life and a fine Rs. 200/- in default of payment to fine to further undergo one month's rigorous imprisonment. under Section 333, IPC to, three months rigorous imprisonment. under Section 447, IPC to three months rigorous imprisonment.

3. under Section 302, IPC to imprisonment for life and to pay a fine of Rs. 200/-. In default of payment of fine to further undergo one month rigorous imprisonment. under Section 447, IPC to three months rigorous imprisonment.

4. All the snbstantive sentences of the accused appellants were ordered to run concurrently.

5. Lallu son of Hari Narayan (PW 1) lodged a First Information Report on November 19, 1978 vide Ex. P 10 at Police Station Salimpur district Sawai Madhopur at 6.00 A.M. It was mentioned in the First Information Report that on a day prior to the filing of the report, the informant Lallu along with his brother Tej Ram and Het Ram had gone to their field in the morning for tending their crops of wheat. While they were working in the field, at about 5.00 PM. in the evening. Ram Khiladi, Malli and Jag Ram sons of Hari Narayan came armed with Lathies in their field Khasra No. 902 and started up-rooting the plants of wheat. The informant raised an objection and asked the accused-persons not to do so. Then, Ram Khiladi, Malli Jag Ram came towards them for giving a beating. Het Ram tried to run, but he was surrounded near the boundary wall of field Nos. 902 and 917 and was mercilessly beaten by the accused-persons. When Tej Ram tried to rescue Het Ram, the accused, Malli Ram inflicted a blow by Lathi on the hand of Tej Ram. On raising a hue and cry by the informant, Bharoshi Chothi and Laxmi Narayan Meena of the neighbouring fields came on the spot and, thereafter, the accused-persons ran away. As Het Ram was seriously injured, he was taken to a hospital at Mahaveerji, but the Doctor told them that the condition of Het Ram was serious and as such he was advised to be taken to Karoli. It has been further stated that for want of proper transport for taking Het Ram to Karoli, they brought Hetram to Hindon, the Doctor gave an injunction to Het Ram and advised him to be taken to Karoli. While Het Ram was being taken to Karoli, he succumbed to the injuries in the way.

6. The police, on the basis of the above information' registered a case for offences under Sections 302, 447, 323 and 34, IPC. The autopsy was concluded by the Dr. S.B. Bhardwaj, (PW 5) on November 19, 1978 and on examinations, found the following external and internal injuries:

(2) Contusion 5' x 1' on right lateral side of back vertical just below auxilla

(3) Abrasion 1 1/2' x 1/10' on right side of chest one inch above nipple

(4) Contusion 2' x 1' on right shoulder superior aspect

(5) Abrasion 1' x 1/2' on right shoulder posterior aspect. All injuries were anter-mortem. All these injuries, were caused by hard blunt object

On internal examination:

(1) Brain membrains over right parital lower brain torn and congested Right parital lobe was lacerated on its lower posterior part with punctait haemorrhages on its surface.

(2) Liver, spleen, kidneys were found congested.

(3) There was depressed facture of right parital bone posterior part.

In the opinion of Dr. Bhardwaj, the cause of death was shock and laceration of brain with intra cerebal heamorrhage caused by external injury No. I. On the same day, the injuries of Tej Ram were also clinically examined by Dr. Bhardwaj and one contusion 2' x 1 1/2' on anterior aspect of left wrist joint was found on the body of Tej Ram. According to Dr. Bhardwaj, this injury was simple and was caused by blunt object. The Police, after usual investigation, filed a challan in the court of Additional MunsifFand Judicial, Magistrate, Hindon where from it was committed to the court of Additional Sessions Judge, Gangapur City for trial. The accused persons denied the charge and claimed to be tried.

7. The prosecution, in support of its case, examined 11 witnesses in all and the accused-persons, in defence, examined 3 witnesses. Out of the three witnesses, DW 3 is Dr. Suraj Lal Gupta, Medical Jurist, General Hospital, Karoli, who had examined the injuries of Jag Ram, Malli and Ram Khiladi. The injuries of all these persons were examined at 9.00 P.M. on November 18, 1978 itself. According to Dr. Suraj Lal Gupta, the following injuries were found on each one of the above-mentioned persons:

The learned Additional Sessions Judge believed the prosecution story and sentenced the two accused-appellants as mentioned above.

8. Mr. Tibriwal, learned Counsel for the accused-appellants, contended that the major part of the prosecution case is admitted and it is proved that both the parties were closely related. Their fields were adjoining and there was no prior motive or enmity for committing the crime. It is further argued that both the parties were tending their crops in their fields in the normal course of their job and 18 injuries have been found on the body of three persons from the side of the accused-persons and only five injuries have been found on the body of Het Ram deceased and only one contusion on the wrist of Tej Ram from the side of the complainant-party. Out of the five injuries found on the body of Het Ram, only one has been found to be fatal and the other injuries are of simple nature. It is, further, argued by Mr. Tibriwal that the prosecution story, as narrated by PW 1 Lallu Lal, PW 3 Tej Ram and PW 4 Bharosi, the alleged eye witnesses, that the accused-persons had entered the field of the complainant-party and they had uprooted their wheat plants, is totally falsified from the statement of PW 11 Gauri Shankar, the Investigating Officers, and the site plan Ex. P3, prepared by him. It is contended that PW 11 Gauri Shankar has clearly stated that the place of incident has been shown at place 'X' in Field No. 3, as was stated by the witnesses at the time of preparing the site plan. At place 'E' there was no marks of blood. In the adjoining field in the South of place 'E' the crop of wheat was standing. The height of the plants was only 4 inches. It was correct that there was no crop in Field No. 3 while the portion marked 'E' was in Field No. 3. Field No. 4 belonged to complainant Srinarayan and in Field No. 4, no crop was cut nor any place was visible showing that any plants were uprooted.

9. Mr. Tibrewal, thus, contended that the prosecution case that the accused-persons had entered the field of the complainant-party and uprooted their plants and, thereafter, inflicted injuries on Het Ram, is totally belied. It is also argued that there was no case of the prosecution that the accused persons wanted to dispossess the complainant-party from their field or wanted to steal or damage their crops, and as in the field size of the plants itself was only 4 inches, prosecution case is totally unworthy of credence. It is, thus, submitted that the case put forwarded by the defence and as proved by the evidence of DW 1 Ram Dhan and DW 2 Smt. Jalbai, stands proved that the complainant-party had tried to damage the water channel leading to the field of the accused-party and on objection raised by the accused-persons, they were given beating by the complainant-party and in these circumstances, if the injuries, as found on the body of Het Ram were inflicted, the same were in the exercise of the right of private defence of the property and person of the accused-persons. It is, thus, argued that no offence was committed by the accused-persons and they are entitled to be acquitted.

10. On the other hand, Mr. Chaterjee, learned Public Prosecutor, supported the judgment of the learned Additional Sessions Judge.

11. We have given our careful consideration to the arguments advanced by the learned Counsel for the defence and the learned Public Prosecutor and have thoroughly perused the record.

12. It is, admittedly, proved on record that the accused-appellants are the sons of Hari Narayan, while Tej Ram and Het Ram are the sons of Srinarayan. Srinarayan and Hari Narayan were real brothers. Thus, the parties are closely related to each other and first-cousins. Their fields are also adjoining to each other and both have tube-wells in their fields for irrigation. The incident is alleged to have taken place at 5.00 P.M. on November 18, 1978. Both the parties, along with their family-members, were tending their crops in the usual course. The incident took place all of a sudden when, according to the prosecution, the accused-persons had entered their field and had up-rooted their crops of wheat. The injuries on the body of Jag Ram, Malli and Ram Khiladi were examined by Dr. Suraj Lal Gupta, Medical Jurist, General Hospital, Karoli on November 18, 1978 and 18 injuries in all, have been found on the body of these three persons. The injuries are lacerated wounds and are also on vital parts of the body. The injuries found on the body of Malli, the accused, were of serious nature and he was kept under observation in the hospital for one day. The injuries numbering 18, go unexplained from the side of the prosecution. There are five injuries found on the body of Het Ram, out of which, only one is found to be fatal and the other injuries are of simple nature. The injury found on Tej Ram from the side of the complainant, is a simple contusion and is of superficial nature. PW 3 Dr. Suraj Lal Gupta has also stated that the injuries as mentioned in Exs. P1 and P 2 (which are injuries found on Het Ram and Tej Ram) and the injuries shown in Exs. D1 to D3, can be caused in one incident. Such large number of injuries amounting to 18 on the body on the accused-persons are proved from the statements of DW 3 Dr. Suraj Lal Gupta, and we are fully convinced that the accused-persons had received these injuries in the alleged incident. The prosecution witnesses, in this regard, are totally silent and this clearly goes to establish that the prosecution is hiding the truth.

13. The prosecution story that the accused-persons had entered their field: Khasra No. 902, and had up-rooted their wheat plants, is also unbelievable in view of the clear statement of PW 11 Gauri Shankar, S.H.O. in-charge of Police Station Salempur. He has prepared the site-plan (Ex. P3) and according to this plan, the place of incident has been shown at place 'A' in Field No. 3. According to his statement, there were no marks of blood found in Field No. 3 and there was no crop at all in the said field. He further stated that the crop was only standing in Field No. 4, as shown in the site-plan (Ex P3), but, in that field, there were no signs of any plant being up-rooted or cutting of any crop. Thus, the place where the incident occurred and the cause of the incident, are not proved, as stated by the eye-witnesses of the prosecution. On the other hand, the explanation given by the accused-persons and the evidence led by them in defence, gives a plausible explanation of their stand that the incident took place on account of the reason that the complainant party had damaged the water-channel going in the field of the accused-persons, If that be so, the complement-party was an aggressor, and in that case, if the injuries were inflict d on both the parties, the case of exercise of right of private defence of property and person, is clearly made out by the accused-persons. Looking to the nature of injuries found on the body of Het Ram, which were only five in number and out which only one was proved to be fatal and which was caused by Lathi, which is a weapon usually kept by the agriculturists in the ordinary course, it cannot be said that the accused-persons had exceeded their right of private defence or caused more harm than was necessary in the fact and circumstances of the case.

14. In the result, we allowed this appeal, set aside the judgment of learned Additional Sessions Judge and acquit both the accused-appellants for all the charges levelled against them.

15. Ram Khiladi, the accused-appellant, is already on bail, as such he need not surrender his bail bonds and his bail bonds are discharged.

16. Malli Ram, the accused-appellant, who is in jail, is directed to be released forthwith, if not required in any other case.